Heard Ms. Ayushi Khare, learned counsel for the appellant and Sri Vidya Kant Shukla, learned counsel for the respondents.
This appeal has been filed by appellant-Insurance Company being aggrieved of the award dated 13.05.2005 passed by the learned Commissioner under Workmen Compensation Act, 1923 and Assistant Labour Commissioner, Muzaffarnagar on the ground that deceased was already sick and was suffering from malaria and jaundice (Pilia) and, therefore, there is no direct connection between the cause of death and the nature of employment of the deceased, therefore, the award passed by the learned Tribunal be set aside.
Learned counsel for the appellant in her support has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Jyothi Ademma Vs. Plant Engineer, Nellore & Another AIR 2006 SC 2830 and submits that in that case, workmen had died as a result of heart attack at the work place, deceased was suffering from chest decease and was previously treated for such decease, Supreme Court noting a fact that job of deceased was only to switch on or off as there was no scope for any stress or strain in his duties held that death cannot be said to have been caused by any accident arising out of and in course of his employment. Under such facts and circumstances, it is held that employer cannot be held to be liable to pay compensation inasmuch as liability of the employer to pay compensation arises only when accident arises out of and in course of employment.
Learned counsel for the claimants, on the other hand, has placed reliance on the judgment of Hon'ble Supreme Court in the case of Param Pal Sigh Vs. National Insurance Company and Another (2013) 3 SCC 409, wherein facts of the case are that deceased was 45 year old driver met with unexpected death due to heart failure while vehicle was driven from Delhi to Nimiaghat, which is 1152 kilometers away from Delhi.
Under such facts and circumstances, the Hon'ble Supreme Court held that Driver would have definitely undergone grave strain and stress due to long distance driving which accelerated the death due to vocation of driver and, therefore, such untoward mishap can be described as accident attributable to the employment of driving.
Learned counsel for the appellant submits that in fact wife of the deceased admitted that when her husband had started from Muzaffarnagar at that time his health was not in good condition and placing reliance on this evidence of Smt. Paramjeet Kaur, it is submitted that her case will be squarely covered by the ratio of Jyothi Ademma (supra). Reliance is also placed on the death report issued by Government Medical College and Hospital, Sector 32, Chandigarh in which ? cerebral malaria with A.R.D.S. is mentioned as cause of death. Reading this death report, it is submitted that since deceased was suffering from malaria, therefore, it cannot be said that he died because of any strain caused during driving of the truck on which deceased was employed.
After hearing learned counsel for the parties and going through the record, it is evident that there is no dispute that deceased was as a driver on Truck No. HR 058 5001 owned by respondent no.4-Gurmail Singh, which was duly insured by present appellant. There is also no dispute that the driver was having driving licence to drive such truck. It is also not disputed that when he was taking his truck on 19.08.2004 from Muzaffar Nagar to Jalandhar then he suffered from high fever at Ambala, then he was treated at Ambala and then he was admitted in P.G.I. Chandigarh where he died on 25.08.2004. The documents which are available on record, even if taken as it is, then it is common knowledge that jaundice is a water borne decease. Every truck driver carries inherent risk of exposing himself to raw water available at various places of stay on route to the journey undertaken by a truck. Thus, jaundice is inherent occupational haphazard which a truck driver is exposed to on account of nature of duties performed by a truck driver. Similarly, malaria is also occupational haphazard for a truck driver. But there is no evidence on record to substantiate the pleading that deceased was either suffering from jaundice or from cerebral malaria. As far as plea of jaundice is concerned, it has come in cross-examination of wife of the deceased that doctor had informed her that her husband died of jaundice, but there is no documentary evidence to this affect. Similarly, as far as malaria is concerned, in death certificate, there is a provisional finding, therefore, there is a question mark before cerebral malaria and that too cannot be definitely attributed to be the reason of death of the driver. Therefore, the possible cause of death as can be deciphered from the word which learned counsel for Insurance Company has placed reliance is A.R.D.S. i.e. Acute Respiratory Distress Syndrome. That too is a professional haphazard which a truck driver faces when they undertake long journey on road exposing themselves to all kinds of unhygienic conditions full of dirt, therefore, in the light of the judgment rendered in case of Param Pal Sigh (supra), which approximately and closely covers the facts of the present case. It cannot be said that deceased did not suffer from any occupational handicap arising out of and originating out of the nature of duties in the course of employment.
In fact, judgment in case of Jyothi Ademma (supra) is distinguishable on its own facts and is not applicable to the facts and circumstances of the present case, therefore, in the light of the above discussion and the law laid down by the Hon'ble Supreme Court in the case of Param Pal Singh (supra), this Court is of the opinion that appellant has failed to bring on record any substantial material to demonstrate that deceased-driver died not because of the occupational exigencies but because of pre-existing decease, therefore, appeal fails and is dismissed.
Order Date :- 2.2.2021 Ravi/-